Parshas Ki Seitzei

The Mitzvah of Shiluach Ha-Kan

The mitzvah of shiluach ha-kan, commanded in this week's parashah,
is a mitzvah which is quite difficult to understand: If one happens upon a
nest where a mother bird is roosting on her young birds or eggs, he should
not take the eggs or young birds while the mother is roosting on them.
Instead, he should send the mother away and then take the young birds or
eggs for himself. While the Torah says that fulfillment of this mitzvah
is "good for you and will prolong your days," the Torah does not explain
the rationale behind it, and indeed, Chazal(1) tell us that it is a
gezeiras ha-kasuv, a Torah decree that we do not understand.

The Rishonim, however, offer a number of possible explanations as
to why the Torah would command us to perform shiluach ha-kan. Among them:

* Rambam(2) explains that shiluach ha-kan shows G-d's mercy on His
creations, similar to the prohibition against slaughtering a mother animal
and her offspring on the same day, as animals instinctively love their
young and suffer when they see them slaughtered or taken away.

* Ramban,(3) who rejects Rambam's explanation, writes that the concern is
not for the animal's feelings, but rather to inculcate compassion in
people; to accustom people to act mercifully to each other.

* R' Bechayei(4) writes that this mitzvah symbolizes the concept that
people should avoid doing anything that will destroy a species, for to
slaughter mother and children on the same day is akin to mass
extermination.

* The Zohar(5) explains that this mitzvah is meant to awaken and intensify
Hashem's mercy on His creations. The pain which the mother bird suffers
when she is sent away and forced to abandon her young "awakens the forces
of mercy in the world" and releases an outpouring of mercy from the
heavens above which alleviates all kinds of human suffering.

While the explanations cited above give us some insight into the
rationale for shiluach ha-kan, we are still left with many unanswered
questions: If someone happens upon a nest but has no interest in the young
birds or eggs, should he still send away the mother and take the eggs?
Should one search for such a nest so that he may fulfill this mitzvah?
What if the nest is in a tree in one's back yard? These and other issues
will be discussed below.

QUESTION: How does one fulfill the mitzvah of shiluach ha-kan - sending
the mother bird away from her nest - correctly?

DISCUSSION: When one observes a mother bird roosting on one or more eggs
[or young birds], one fulfills the mitzvah by performing the following two
actions:

1. Sending away the mother bird. The Rishonim debate whether or not the
mother bird must be lifted by its wings and then cast away, an act which
is extremely difficult to perform, or if it is sufficient to scare her
away by banging on the nesting area with a stick, throwing a stone in her
direction or raising one's voice, etc. The basic halachah(6) and the
prevalent custom(7) follow the lenient view that it is sufficient to send
away the mother bird by scaring her away.(8)

2. Taking the eggs or the young birds. While a minority view holds that
taking the eggs or baby birds is not mandatory,(9) most poskim rule that
one does not fulfill the mitzvah if the eggs or baby birds were not taken.
(10) After taking the eggs or baby birds and establishing halachic
ownership of them, one is not required to keep them; they may be returned
to the nest or thrown away.(11)

QUESTION: Is the mitzvah of shiluach ha-kan obligatory or optional? In
other words, if one observes a mother bird roosting on a nest but has no
need for the eggs [or young birds] - is he still obligated to cast away
the mother bird and take the eggs in order to fulfill the mitzvah?

DISCUSSION: A minority view holds that even one who has no need for the
eggs [or young birds] is obligated to send the mother bird away and
establish [at least temporary] halachic ownership of them.(12) According
to this view, the mitzvah of shiluach ha-kan is an obligation similar to
the mitzvah of hashovas aveidah, returning a lost item to its owner.(13)
But most poskim reject this approach and rule that one is obligated to
send away the mother only if he wishes to keep the eggs or baby birds.(14)
Still, while we rule that one is not obligated to send the mother
bird away if he has no interest in the eggs or young birds, many poskim
recommend that one do so nevertheless.(15) In addition to fulfilling a
mitzvah for which the Torah promises the reward of longevity, there are
many other additional benefits and rewards that Chazal associate with the
proper fulfillment of the mitzvah. Being blessed with children,(16)
finding the proper shidduch,(17) being blessed with the means to buy or
build a new house,18 and hastening the arrival of Moshiach(19) are among
some of the rewards that are promised to those who fulfill this mitzvah
properly.

QUESTION: Does one recite a blessing when performing the mitzvah of
shiluach ha-kan? Does one recite the blessing of shehecheyanu?

DISCUSSION: Although there are several opinions on this issue,(20) the
majority view(21) and the prevalent custom(22) is not to recite any
blessings when performing this mitzvah. One who wishes to do so, may
recite a berachah without invoking Hashem's name(23) using the following
text: Baruch ata melech ha-olam asher kideshanu bemitzvosav le-shaleiach
ha-kan.(24)

QUESTION: Does the mitzvah of shiluach ha-kan apply to all roosting mother
birds?

DISCUSSION: No. A number of conditions must be met before this mitzvah can
be fulfilled:

* The mother bird must be of a kosher species, e.g., a sparrow, dove, or a
pigeon.(25)

* The mitzvah applies only at the time that the mother bird is actually
roosting on the eggs or the young birds. The mitzvah does not apply to a
mother bird who is hovering over or feeding the young birds, but is not
roosting on them.(26)

* While the father of the eggs or young birds also roosts on the nest,
usually during daytime hours only, the mitzvah of shiluach ha-kan applies
to a mother bird exclusively.

* One does not fulfill the mitzvah if the eggs broke before the mother
bird was cast away.27 If the eggs broke during the performance of the
mitzvah, it is questionable if one fulfilled the mitzvah.(28)

* On Shabbos [and Yom Tov], shiluach ha-kan is not performed.(29)

QUESTION: Does the mitzvah of shiluach ha-kan apply to birds that one owns?

DISCUSSION: No, it does not. Birds that are raised domestically, like
chicken or turkey, are exempt from shiluach ha-kan, as the mitzvah applies
only to birds that do not have an owner who cares about them.(30)

Contemporary poskim debate whether or not one fulfills the mitzvah
with a nest which is on one's private property. Some poskim rule that the
mitzvah cannot be performed since one's private property "acquires"
(kinyan chatzer) the nest on his behalf and it is no longer ownerless.31
Others, however, hold that since the owner has no interest in owning the
nest or eggs, his private property does not automatically "acquire" the
nest on his behalf and the mitzvah can still be fulfilled.(32)

QUESTION: Based on the above information, how is the mitzvah of shiluach
ha-kan actually performed?

DISCUSSION: The preferred time to perform this mitzvah is when the eggs
are 1-2 days old, or when the young birds are 8-9 days old. But the
mitzvah can be performed anytime there are eggs or young birds in the nest
as long as the mother is still roosting on them.(33)

In order to be sure that the mother is the one roosting over the
nest and not the father, shiluach ha-kan should take place between sunset
and sunrise, since it the mother who roosts on the nest in the evening and
night hours.

After ascertaining that the mother bird is of a kosher species and
that the nest does not belong to anyone else, one should quietly34
approach the nesting area(35) and gently(36) chase the mother bird away
from the nest by using one of the methods described earlier. If the mother
bird comes back repeatedly before the eggs are taken, she must be
repeatedly shooed away.

Once the mother is gone, a wooden spoon should be used to
carefully lift the eggs out of the nest, making sure not to break them.
One should then lift up the spoon approximately 10-12 inches, in order to
halachically "acquire" the eggs. [If the nest contains young birds, one
should use his hands to gently lift them out.(37)] He then may return the
eggs to the nest. The mitzvah has been completed.

FOOTNOTES:

1 Berachos 33b.

2 Moreh Nevuchim 3:48.

3 See also Rashbam, Ibn Ezra and Chezkuni for a similar approach.

4 A similar explanation is offered by the Chinuch (545) and Ralbag.

5 Quoted by R' Bechayei and by Chavos Yair 67. See explanation in Beiur ha-
Gra to Mishlei 30:17 and in Imrei Noam, Berachos 33b.

6 Chazon Ish Y.D. 175:2.

7 Many contemporary poskim, among them the Satmar Rav, Harav Y.Y.
Kanievsky, Harav Y.Y. Weiss, Harav S.Z. Auerbach, Harav E.M. Shach and
Harav S. Wosner were all seen performing shiluch ha-kan by banging on the
nest with a stick until the mother bird flew away. See also Teshuvos
v'Hanhagos 1:329.

8 If, however, no action was taken to cast the mother away but she flew
off on her own, the mitzvah is not fulfilled.

13 In other words, just as one may not ignore a lost object that he
happens to see but rather is obligated to return it to its owner, so, too,
one who happens to see a mother bird roosting on its eggs or young birds
is obligated to send it away and take ownership of her offspring.

28 See Shaleiach Teshalach, pg. 54, for the various views on this subject.

29 Chasam Sofer O.C. 100.

30 Y.D. 292:2.

31 Harav S.Z. Auerbach (Minchas Shelomo 2:97-26); Harav Y.S. Elyashiv,
quoted in Shaleiach Teshalach, pg. 61. [In the atypical case, where the
mother bird did not leave the nest for even one moment from the time she
laid the eggs, then all views agree that shiluach ha-kan could be
performed with a nest which is found on one's private property; Y.D.
292:2.]

34 So that the mother bird does not fly off before you have a chance to
send her away.

35 Some recite a special l'shem yichud before performing the mitzvah; see
text in Kan Tzippor, pg. 138.

36 Otherwise the mother bird may panic and break the eggs or take them
away with her.

37 If the young birds fit snuggly into one's hands, there is no need to
lift them up 10-12 inches, since, halachically speaking, one's "hand"
acquires the young birds for him; Beiur Halachah 366:9, s.v. zurich.